EFF Urges Appeals Court to Affirm Libraries' Right to Digitize Books

San Francisco - The Electronic Frontier Foundation (EFF) urged an appeals court today to affirm that the fair use doctrine protects the creation of an invaluable digital library.

For the past eight years, major university libraries have collaborated with Google to digitize their collections. One result has been the HathiTrust Digital Library (HDL). Via the HDL, more than 60 university and research libraries can store, secure, and search their digital collections. With the exception of some patrons who have disabilities, HDL does not allow users to access the digitized books in their entirety – it merely does a keyword search and delivers titles and page numbers as results, enabling students and others to find the book at a library or to purchase a copy.

The Authors Guild sued HathiTrust and several universities over the service, claiming that the digitization that led to the creation of the database violates their members' copyrights. A federal court in New York correctly disagreed with the Authors Guild, ruling that digitizing the books in order to enhance research and enable access is a clear legal fair use of copyrighted material. The Authors Guild has now taken its claims to the Second U.S Circuit Court of Appeals. In an amicus brief filed today, EFF argues that accepting the Authors Guild's wrongheaded arguments could hurt fair use, innovation, and the public interest.

"Fair use is a critical part of copyright law – ensuring that copyright serves, rather than thwarts, innovation," said EFF Intellectual Property Director Corynne McSherry. "This library gives scholars and students an unparalleled ability to search and access knowledge and gives authors new audiences for their works. It's precisely the kind of project that the fair use doctrine was designed to protect."

In particular, EFF urged the appeals court to reject an argument raised in another amicus brief from the Associated Press (AP) arguing that fair use should only protect copies that are somehow "expressive" and limited to "non-commercial" uses. But this would drastically narrow the scope of fair use protection. In our digital age, copying is an integral and inescapable part of many valuable technologies.

"After all, email, web browsers, search engines, and DVRs all work by copying data to the memory of a device. If that's not fair use, then we've got a clumsy and expensive technological future coming up," said Staff Attorney Daniel Nazer. "If the Authors Guild and the AP get their way, copyright law would become a roadblock to many of the benefits it was designed to promote."

Public Knowledge and the Center for Democracy and Technology joined EFF in today's amicus brief. Rochelle Woods and Deepak Gupta from the law firm of Farella Braun and Martel LLP submitted the brief on behalf of the public interest groups.